Donald Dall. v. Warden

• Decision Date: 13 July 2020
• Docket Number: No. 17-14570,17-14570
• Citation: 964 F.3d 1285
• Parties: Donald DALLAS, Petitioner-Appellant, v. WARDEN, Attorney General, State of Alabama, Commissioner, Alabama Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

964 F.3d 1285

Donald DALLAS, Petitioner-Appellant,

v.WARDEN, Attorney General, State of Alabama, Commissioner, Alabama Department of Corrections, Respondents-Appellees.

No. 17-14570

United States Court of Appeals, Eleventh Circuit.

July 13, 2020

Natalie Carroll Rezek Olmstead, Christine A. Freeman, Federal Defender Program, Inc., Montgomery, AL, Joseph Peter Van Heest, Attorney at Law, Montgomery, AL, for Petitioner-Appellant

Henry M. Johnson, Beth Jackson Hughes, Steven Marshall, Alabama Attorney General's Office, Montgomery, AL, for Respondents-Appellees

Before MARTIN, BRANCH and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

On a hot July day in 1994, Donald Dallas and Carolyn ("Polly") Yaw hatched a plan to obtain money to buy crack cocaine. At a shopping center in Prattville, Alabama, they chose their victim, 73-year-old Hazel Liveoak. As Mrs. Liveoak loaded groceries into her car, Dallas and Yaw approached the vehicle. They pushed her into the car and forced her to lie down on the floorboard. When they discovered that she had only $10 in cash, they abducted her instead. They drove her first about an hour away to the end of a dirt road in Greenville, Alabama, where Dallas demanded Liveoak's credit cards and put her in the trunk of the car. Dallas and Yaw then drove back to the Am-South Bank in a K-Mart parking lot in Montgomery, where they used her bank cards to withdraw money from an ATM.

As Yaw withdrew the money, Dallas sat on the trunk of the car and spoke with the victim, who told him she had a heart condition. She also told him she had a son Dallas could call who could release her from the car. She gave Dallas the telephone number, but he didn't write it down. He promised Liveoak that he would call the police to make sure she was released unharmed, but he never did. Instead, Dallas and Yaw called a cab and went immediately to a crack house to buy drugs, and then to a motel to smoke crack all night. Meanwhile, Hazel Liveoak struggled for hours to get free or call for help. She eventually succumbed to a heart attack in the hot trunk of her own car.

An Alabama jury convicted Dallas of capital murder, concluding that he intended for Hazel Liveoak to die in that trunk. The trial court accepted the jury's 11 to 1 recommendation for death and sentenced Dallas to die for the murder. His convictions and sentence were affirmed on direct appeal, his state postconviction petition was denied, and the United States District Court for the Middle District of Alabama denied his federal habeas petition. We granted a certificate of appealability limited to two issues: (1) whether Dallas received ineffective assistance of counsel throughout his capital trial because his attorney was laboring under a conflict of interest; and (2) whether Dallas received ineffective assistance of counsel at the penalty phase of his capital trial because his attorneys failed to adequately investigate and present mitigating evidence. The state court's determination that Dallas's counsel was not encumbered by an actual conflict that adversely affected his performance was neither contrary to nor an unreasonable application of clearly established law; nor was it based on an unreasonable determination of the facts. Nor, finally, has the petitioner established ineffective assistance of counsel at the penalty phase. We affirm the judgment of the district court and deny the petitioner habeas relief.

I.

At trial, overwhelming evidence, including the testimony of Dallas himself, detailed the abduction and brutal murder of Hazel Liveoak. In addition to the basic facts we've recounted, the jury heard the gruesome details surrounding Liveoak's death. The evidence suggested she lived for a number of hours in the trunk of her car, baking under the hot Alabama sun in July. The state medical examiner testified that the autopsy he performed revealed that Mrs. Liveoak had bruising on the right side of her head, the backs of both hands and wrists, and her right bicep, as well as cuts on her palms, all of which were consistent with her banging on the trunk lid to get out or call for help. He also observed that Liveoak had urinated while confined in the trunk of the car. The medical examiner determined her death by heart attack to be a homicide because, while she was functioning in her daily life despite her heart disease, "she did not have the cardiac reserve to handle [the] extremely stressful confines she was in, in a dark, hot, confined trunk of a car and left there for hours, that her heart could not take that amount of stress."

Moreover, according to the testimony of Dennis ("Tony") Bowen, an acquaintance of Dallas's and Yaw's, the two were bragging at the crack house about their crime, explaining that they had left an old lady in the trunk of a car. Bowen added that when he asked Dallas about it, Dallas said that he "hoped the old lady would die." The state also presented evidence at trial that Dallas had abducted and robbed another elderly person, 80-year-old Wesley Portwood, from a shopping center parking lot in Prattville just three days before kidnapping Mrs. Liveoak. Portwood testified at trial. He said Dallas abducted him at knifepoint in his vehicle, drove to a remote area, and ordered Portwood out of the car. Dallas told Portwood to lie down in the woods, and when Portwood questioned Dallas, Dallas said he could either lay in the woods or be locked in the trunk of the car instead. Portwood told Dallas that it was too hot to get into the trunk of the car and that he would "smother to death in there." Portwood chose instead to lay in the woods and survived the robbery and abduction.

II.

A. Pretrial Appointment of Counsel

On February 1, 1995, Algert Agricola was appointed by a Montgomery County Circuit Court judge to represent Dallas. The same day, Agricola was separately appointed by Alabama's attorney general for the limited purpose of representing the Alabama Department of Mental Health and Mental Retardation in an unrelated civil case in the Middle District of Alabama. The following month, Agricola moved to withdraw as Dallas's counsel. Agricola explained that because of his appointment as a deputy attorney general, he was "subject to the authority of the Alabama Attorney General who [would] represent the State of Alabama on appeal from a conviction in [Dallas's case]." Agricola told the state trial court that he had conferred with the Disciplinary Commission of the Alabama State Bar Association and had been advised that the Commission "[did] not believe there exist[ed] a conflict under the Rules of Professional Conduct in [those] circumstances," but Agricola maintained nevertheless that "the question of an ethical conflict [was] entirely different from the question of whether [Dallas's] constitutional rights [were] violated by his being forced to accept the representation by appointment of an attorney who also serve[d] as a Deputy Attorney General." He also submitted an affidavit explaining that it was his opinion that Dallas's constitutional rights would be violated by his appointment. The trial court conducted a hearing and then denied the motion.

At the hearing, Agricola "represent[ed] to the Court that if [he] were to stay in this case that [he] would do [his] best for the defendant," but that he believed "the test [for conflict] [was] whether there [was] some potential that there might be duality of representation." He said he had discussed the matter with Dallas and Dallas did not want his representation because of his concurrent status as a deputy attorney general. After Agricola's brief presentation, the trial judge rejected the claim of conflict this way: "I know the argument you are making, but I don't think there is sufficient conflict of interest to prevent you from representing him. I am going to follow the response of the Alabama Bar Association until this matter is concluded." Agricola, along with co-counsel Jeffery Duffey, who was appointed in September 1995, represented Dallas throughout the trial. Agricola was eventually replaced by appellate counsel on direct appeal.

B. The Guilt Phase Evidence Relevant to Mitigation

Counsel did not deny Dallas's involvement in the crime but focused instead on his intent. In his opening statement, Agricola summed up the defense this way:

You have to know what happened to [Dallas] on that day and in the days before that day, and you need to know about his entire life, because the first tragedy in this case is clearly the death of Hazel Liveoak. But the second tragedy in this case is the life of Donald Dallas.

Donald Dallas came from a broken home. You will hear that his parents were divorced when he was about six years old. His father beat him. He went to bars with his father before he was ten years old. He was ingesting intravenously in his veins crystal methamphetamine when he was eleven years old. He has constantly used drugs ever since. That is the life Donald Dallas has had.

At the guilt phase, the defense called four witnesses: Rhonda Sue Chavers, Dr. Guy Renfro, Susan James, and Donald Dallas himself. We detail this evidence at some length because it formed much (although not all) of the defendant's mitigation evidence at the penalty phase.

Rhonda Sue Chavers, a friend of Dallas's since he was a teenager, testified that she was with Dallas on the morning of July 14, 1994. Dallas and Yaw had slept at Chavers's house on the night of the 13th, the day after Mrs. Liveoak's kidnapping. Chavers said she and Dallas were watching television in the morning on the 14th and learned that Mrs. Liveoak had died. Chavers testified that Dallas "cried" and "was worried" when they learned of her death, and told Chavers "that he tried to get [an acquaintance] to take him back over there, but [he] wouldn't."

The defense also called Dr. Guy Renfro, a licensed clinical psychologist in private practice who, after being appointed by the state trial judge, evaluated Dallas for competency to stand trial. Renfro had a...